In 2009, a Pennsylvania jury ordered Ford Motor Co. and a local dealership to pay $8.75 million to the family of a 43-year-old tow truck operator who was killed when the parking brake on his truck gave way, causing the vehicle to roll on top of him. Joseph Blumer had just finished lowering a vehicle off the back of his Ford F-350 tow truck when the parking brake broke. The vehicle, which was in neutral gear and had a manual transmission, rolled down the hill it had been parked on and over Blumer, who suffocated. It was alleged in the Complaint that Ford Motor Co. knew as early as July 2000 that the parking brake system, used in all of its F-series vehicles between 1999 and 2004, was faulty.
The Pennsylvania Superior Court upheld that verdict last month, ruling that evidence of design changes and reports of prior incidents introduced by the Plaintiff were, in fact, admissible to the jury. Writing for a 2-1 majority, Judge Cheryl Lynn Allen ruled that evidence of design changes instituted by the Defendant manufacturer in the case was correctly presented to the jury because the changes were developed before the date of the subject accident. Further, Judge Allen ruled, the reports of prior incidents may have constituted inadmissible hearsay, but the Defendants failed to object to the reports during trial and failed to request a limiting instruction to the jury, thus waiving their right to appeal on the issue.
Ford sought a new trial, arguing that the Court erred in its evidentiary rulings. The majority of the Court disagreed. Judge Allen wrote: “The courts interpreting these rules, as well the notes accompanying them, make it clear that changes in design that are devised prior to the accident at issue are not barred as a subsequent remedial measure.” And because the estate of the decedent proceeded in part on a malfunction claim, it was entitled to use circumstantial evidence as a means of establishing a prima facie case, Judge Allen wrote. That ruling applied as well to the question of the admissibility of the prior incidents reports.
The Trial Court conducted an in-camera review of those reports, ruling that 28 submitted by the Plaintiffs were admissible. Judge Allen ruled that 25 satisfied the “substantial similarity” test outlined by a 2010 Superior Court (Lockley v. CSX Transportation Inc.) decision. The reports, Judge Allen indicated, “need not detail the precise defect within the parking brake system in order to be admissible as substantial similarity evidence because plaintiff proceeded on a malfunction theory.”
Judge Allen ruled that Ford was still free to use cross-examination and other measure to argue the braking failure in Blumer was caused by something distinct. Further, the judge ruled that the reports may have arguably been hearsay, but Ford was required to preserve their objection to the evidence in a different manner. Ford, Judge Allen wrote, had argued that it preserved the issue by filing a motion in limine prior to trial and by requesting the limiting jury instruction. The judge wrote further that Ford did not preserve its appeal since it failed to make a hearsay objection at trial or base its request for a limiting instruction on hearsay.
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